Secondly, Unum claimed that even if the condition was caused by injuries, it was not an accident, imputing knowledge to Dr. Chapman that she was highly likely to suffer this injury by her work. The court disagreed, explaining, that it “strains credulity to conclude that any endodontist views the possibility of disabling arthritis simply by practicing endodontia as highly likely. If this were the case, the dental field would be suffering a severe shortage of endodontists.”

The court considered the reasonable expectation of the insured:

“Finally, as a matter of logic and common sense, disabilities caused by repetitive trauma, are often termed repetitive stress injuries not repetitive stress sicknesses. An ordinary plan participant would likely expect that an insurer would cover a repetitive stress injury under Provident’s definition of an accidental bodily injury.”

This important analysis applies to many professions commonly exposed to repetitive stress to the body in the workplace. If you are disabled due to a condition that originates or is worsened by repetitive exposure to the causative agent (constant use of hands, heavy lifting objects) read your policy carefully and determine if your claim is based on sickness or accidental injury because this may impact the maximum duration of your claim.

A common thread in disability denials is the company’s decision that the insured can perform “sedentary work” despite their restrictions and limitations. Sedentary work, simply considers the physical condition of the person- can they sit most of the time, and walk or stand for brief periods of time. The DOT definition for sedentary work conveniently focuses exclusively on the physical demands and disregards any other aspect such as cognitive.

In Smith v Reliance, Reliance paid LTD benefits out for several years to an executive who had strokes and suffered from heart problems. Reliance then reversed course and concluded Mr. Smith could return to work, alleging he had to prove that he could not perform sedentary work due to a physical limitation on, for example, sitting, typing, or speaking. The court disagreed, holding that if someone had to prove they could not sit, speak or type, in order to receive disability benefits, “such a rule would erase disability eligibility for all but the bedridden. Some serious diseases are debilitating because of their effect on the mind or because they worsen with stress.” Smith v. Reliance Standard Life Ins. Co., 2019 U.S. App. LEXIS 18518, at *14 (4th Cir. June 20, 2019)

The insurer must consider the actual duties of the individual’s regular occupation when deciding whether to approve of the disability claim. Not only must they review the physical nature of the job, but the intellectual, the cognitive elements.

Another recent tactic by insurance companies such as Cigna, Prudential, Hartford, Unum and Reliance Standard is to ask the treating doctor whether their patient can work if they are provided with “standard breaks” to “reposition” themselves. This type of question is misleading because it suggests that the only problem the individual has is related to moving about in the chair. Our clients that have back problems, for example, cannot merely shuffle in their chair to get out of pain. They must change their position from sitting to laying down, to reduce their symptoms. Chronic pain often interferes with concentration and focus, requiring frequent rest periods.

A recent example of an insurer denying a claim based on an assertion that the disabled person can “change positions” is McIntyre v Reliance Standard. Ms. McIntyre, a former nurse was found eligible for long term disability benefits for the initial period because Reliance agreed that she could not perform the duties of a nurse. But Reliance Standard eventually denied the claim, concluding that she could perform other sedentary occupations because occupations “allows for breaks.”

The source for the allegation that she could perform sedentary occupations was a question to her treating doctor as to her general abilities unrelated to a workplace setting. Her doctor noted that she could sit for thirty minutes before needing a position change; and continued to maintain she could not return to work in any capacity. The insurance medical examiner alleged that she could perform sedentary work. Using this manufactured evidence, Reliance concluded that Ms. McIntyre could return to work in a sedentary capacity because she could potentially sit for thirty minutes and then change position.

The court saw through Reliance’s illogical conclusion. The court held that “given the realities of full time work, the court has difficulty imagining occupations that would consistently allow McIntryre to take a break every half hour.” The court reasoned that “even if McIntyre took only 10 minute breaks after every half hour she worked, she would be breaking for at least 80 minutes for every 8 hour workday, totaling nearly 7 hours a week. McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28, 2019).

The insurance companies overlook multifactorial elements of full time work. Most of us can sit for durations. But an individual suffering from pain, side effects of the medications, and physical fatigue cannot predictably sustain work on a regular reliable basis. We at Bonny G. Rafel LLC navigate through these difficult roadblocks to achieve a fair and just result for our disabled clients.

The insurance companies that administer these claims are required to adhere to the ERISA regulations as well, which require them to make their appeal determination within 45 days of their receipt of the appeal, unless they establish “special circumstances” to extend the deadline another 45 days, for a total of 90 days. In our experience, insurance companies regularly ignore these deadlines. They wait until the first 45 days has gone by, and then ask our client to provide medical information or documentation, even to undergo an insurance medical examination. The insurance companies state that since they have to wait for this information, they can toll the deadline to make their decision on appeal until our client adheres to their demands. Aggressive lawyers like us have challenged the insurance company’s right to “toll” the deadline. Of special concern is the insurance company waiting until we file an appeal to require our client to undergo a medical examination with their doctors. We object to our clients having such an exam during the appeal. It is our view that once the denial has been issued, the contractual obligations of our clients stops and is not restored until the denial is overturned. Of note is a recent case, McIntyre v. Reliance Standard Life Ins. Co., 2019 U.S. Dist. LEXIS 88536 (D. Minn. May 28,, 2019) where the court explained that Reliance could toll the deadline until it received medical records it had ordered from the providers which was not within their control, but could not toll the statutory period for the IME since they could have scheduled it earlier. We have recently filed several lawsuits against insurance companies when they have not decided the appeal we filed within the statutory deadline. Our disabled clients are entitled to a full and fair review of their claim on appeal, obviously the insurers are not interested in the financial havoc their denials have on our clients and their families.

We have handled many long term disability cases involving “failed back syndrome” where our clients have neuro-stimulators permanently installed in their backs to help them manage pain. Despite that evidence of the severity of their despairing condition, the absence of an “objective” test showing the precise cause of the spinal dysfunction was used to deny their claim.

Fortunately, the 7th Circuit Court of Appeals recognized the significance of various elements of proof establishing the existence of a neuromuscular disorder which qualifies under the exceptions to the MetLife limited coverage. While MetLife emphasized that there were some equivocal test results showing ongoing radiculopathy (an exception to the limit), the Court of Appeals considered the clinical examination results of the claimant’s own specialists, ongoing consistent testing which aligned with the disorder and past positive EMGs as the objective evidence MetLife arbitrarily disregarded. They reversed the District Court in Hennen v. Metro. Life Ins. Co., 2018 U.S. App. LEXIS 26114 (7th Cir. 2018). This decision fortifies that the insurers must not require only a certain “objective evidence” to establish the necessary proofs.

The Court went further to point out the consistency in the evidence supporting the impairment, particularly troubled by MetLife’s failure to consider that “every physician who examined Hennen after her 2012 spine operation concluded that she had radiculopathy.” Id. at *16 and criticized MetLife’s self-serving gamesmanship by selecting only their physician who favored their position.

We are pleased that the Seventh Circuit saw through the veil of MetLife’s allegations that Hennen no longer qualified for disability. We see all too often that insurers latch onto one piece of evidence, ignoring all else, as they rush to deny bonafide claims of the disabled. We are constantly in the trenches with the insurers, advocating for their fair consideration of all of the evidence that we present on our clients’ behalf. They must be held accountable to their fiduciary obligation to each of our clients.

Thank you for reading our post! We report on interesting developments in the law of disability. See www.disabilitycounsel.com for information on our New Jersey disability law firm.

An issue arises when the employee indicates an interest in continuing the coverage but the employer fails to submit the necessary paperwork to them. A recent example of this problem occurred in Erwood v. Life Ins. Co. of N. Am._ 2017 U.S. Dist. LEXIS 56348. Erwood left work on disability, but the employer did not inform him or his family of his need to convert life insurance coverage to own it himself in order to remain covered and did not provide him with the conversion forms. When Erwood died and his family sought life insurance, the carrier, CIGNA denied the claim because no conversion forms were on file. The employer defended its position by claiming that there was a packet of materials sent to Erwood, but the Court held the packet was inadequate because it did not include the materials necessary to convert life insurance coverage or inform where to access such materials or even where to send them. The employer’s excuse that Dr. Erwood did have access to the life insurance program on its benefits internet portal was not enough. The Court held that “merely making an SPD on its portal does not satisfy its disclosure obligations of the plan administrator, the employer, especially in light of the fact that once Dr. Erwood’s FMLA leave expired, his access to the portal was terminated.” The Court entered judgment for the full life insurance benefit from the employer.

The Court explained that once Erwood, an ERISA beneficiary, requested information from the employer who was aware of his status and situation, the employer has a fiduciary obligation to convey complete and accurate information material to the beneficiary’s coverage and rights even if he has not specifically inquired about it. The fiduciary, in this case the employer, has a duty to inform when he knows that silence might be harmful. So if an employer makes an affirmative misrepresentation or fails to adequately inform a plan participant, that misrepresentation or inadequate disclosure can be material and when the employee detrimentally relies upon it and loses coverage, the employer can be liable.

We advise our clients to inquire about all benefits, in addition to long term disability they may be entitled to while on claim. It is also our experience that some claimants who lose these other benefits when their disability claim is denied, has a right to reinstatement of this coverage when the disability claim is reversed on appeal. Thus, this area of inquiry is essential to protect the rights of the disabled. Bonny G. Rafel LLC

We will issue several blogs on the important changes to the regulations to demonstrate how significant the changes are to repair fundamental flaws in ERISA. The Department of Labor explained that the regulations were enacted

“to promote fairness and accuracy in the claims review process and protect participants and beneficiaries in ERISA-covered disability plans by ensuring they receive benefits that otherwise might be denied by plan administrators in the absence of the fuller protections provided by this final regulation.”

Impartiality of the decision-makers

Nearly ten years ago, the U.S. Supreme Court held that a plan administrator’s dual role of both evaluating and paying benefits claims creates a conflict of interest. That conflict is to “be weighed as a facto[r] in determining whether there is an abuse of discretion.” MetLife v. Glenn 554 U.S. 105 (2008). This consideration of the existence of a conflict has unleashed hundreds of discovery battles in disability litigation because the insurer wants there to be no discovery beyond the administrative record they have created, and the claimant seeks to establish motivation and bias that influenced the decision makers,-evidence rarely found in the claim file itself. It remained unclear how a claimant can establish the insurer’s conflict existed and influenced the outcome if the record is closed.

For example, during ERISA litigation, insurers do not want their medical or vocational experts deposed. As a District Judge in Chicago held, “A physician’s potential biases and conflicts of opinion could directly affect the Court’s decision whether Plaintiff is or was actually disabled because they bear on the credibility and reliability of her medical opinions.” In Harding v. Hartford Ins. Co. , 2017 U.S. Dist. LEXIS 54241 (N.D.Ill. Apr. 10, 2017), The Court was skeptical of Hartford’s assertion that the administrative record contains any evidence of the hired medical reviewers’ biases and granted plaintiff’s request for his deposition.

The ERISA amendment requires that disability benefit claims and appeals are adjudicated in a manner designed to ensure the independence and impartiality of the persons involved in making the decision. Insurers must not employ individuals including medical consultant reviewers who have reputations for producing reports that lead to claim denials, or bonus them based on outcomes. Similarly, the selection of vocational experts must be insulated from economic bias that may influence their opinions and create a conflict of interest. Insurers must actively take steps to confirm their selected reviewers are not beholden to opinions that lack objectivity or are based on retaining their stream of income from the insurance industry.

Other examples of the court’s interest in the integrity of the reviewers include Mendez v. FedEx Express, 2016 U.S. Dist. LEXIS 111329 (E.D. Mich. Aug. 22, 2016). The court held:

“Aetnas reviewing physicians were “repeat players that have a material, if not necessarily disabling, conflict of interest”. This does not automatically render Aetna’s decision arbitrary and capricious, but it is a factor that weighs against Aetna.”

In another recent case, a Court recognized the impropriety of relying on experts who are a reliable resource for denial support, holding,

“The court also notes that the financial relationship between Aetna and Dr. Sharma, through MES, does suggest the possibility of a conflict of interest.” Plaintiff points out that Dr. Sharma’s payments for reviewing Defendant’s claims nearly doubled over two years, and although this fact standing alone would not render defendants or Dr. Sharmas opinion unreasonable, but does suggest a possible (unsatisfying) explanation for why Defendant would rely on Dr. Sharma’s report despite some of its flaws discussed above.”

See Alvarado v. Aetna Life Ins. Co., 2016 U.S. Dist. LEXIS 120275 (N.D. Ill. Sep. 6, 2016)

We expect that this regulation will loosen the tight constraints many courts have enforced to limit discovery about the decision-maker’s financial remuneration, their bias, and hold the insurers responsible for obtaining assessments that are more independent of insurers’ financial ties. As Bonny G. Rafel LLC, the Voice for the Disabled, we will continue to advocate for fair, objective oversight of claims by the insurance companies who market and advertise that their policies will protect their insureds when disaster strikes, but often terminate or deny valid claims instead.

Every federal circuit court to consider the meaning of the phrase “caused or contributed to by” has read it to exclude coverage only when the claimant’s physical disability was insufficient alone to render him totally disabled. See George v. Reliance Standard Life Ins. Co, 776 F.3d 349 (5th Cir. 2015). The insurer bears the burden to show that the exclusion applies to the case. “The effect of an applicant’s physical ailments must be considered separately to satisfy the requirement that the review be reasoned and deliberate.” See Okuno . In order to overcome the insurers’ application of this mental health limitation to continued benefits, the claimant must claim total disability as the result of a purely physical condition.

What if a physical condition is covered, but the symptoms include depression, which is a mental illness? Courts caution that policy terms and precise medical facts of the claim must be examined. See, for example, Leight v. Union Sec. Ins. Co. 2016 U.S. Dist. LEXIS 68412 (D.Or. May 24, 2016). Leight’s Aspergers’ Disorder is expressly exempt from the definition of “mental illness” in the policy but Union Security attempted to apply the mental illness limitation, since the disorder produces disabling symptoms of anxiety and depression. The court determined that the mental illness limitation did not apply since Aspergers was a ‘covered condition.”

In conclusion, the mental illness limitation have been applied to long term disability claims which arise from a confirmed physical disorder, such as multiple sclerosis, parkinson’s disease and cancer. Anyone suffering from these illnesses and taking stock of their lives and the financial stresses that come with disability are prone to become anxious and depressed. It is wrong for an insurance company to take advantage of the disabled’s psychological struggles to limit coverage, but claimants must be aware of these hidden traps for the unwary.

Contact us at Bonny G. Rafel, LLC, because we handle involve claimants with disabling conditions of both the body and mind.

Ms. Leetzow suffered from migraines for 20 years getting more severe, more frequent, (2-5 per week) and more resistant to treatment. Metropolitan Life challenged the viability of the claim, since there was no “objective evidence” of her crippling pain. Another roadblock to recovering disability benefits is if the impairment is based on a claim of chronic pain. The court laid the groundwork for a claim such as this. Since there are no neurological exams for migraines that are likely to be positive, claimant’s personal accounts of her migraine related pain are to be credited, “migraines are an invisible illness and there is often no objective medical evidence to confirm their existence, patients’ personal accounts are the strongest, and often only, evidence of disability in such cases”.

The frequency of medical visits to the doctor was less critical to the Court, since Ms. Leetzow stated that her disability makes it harder for her to initiate and arrange and attend doctors appointments. And she had in the past tried all reasonable treatment for her condition. The court noted,

“It is not uncommon for people with longstanding illnesses that have not responded to aggressive medical treatment to lose hope in the ability of doctors to improve their situations.” “Accordingly, a lack of doctors’ appointments during the elimination period does not mean Plaintiff was not disabled. In fact, it could mean Plaintiff was so disabled she had temporarily given up hope on doctors’ abilities to improve her illness.”

This case provides a helpful roadmap to arguing a claim based on longstanding but progressive illness.

We at Bonny G. Rafel LLC handle disability claims based on chronic illness and know what evidence to gather to improve our chances of successful appeals and litigation. Contact our firm for more information. www.disabilitycounsel.com

Here at Bonny G. Rafel, LLC we litigate against the application of ERISA when the facts justify safe harbor protection. Our clients deserve the right to access to the justice system, and all available remedies, not blunted by the constricts of ERISA regulation. Bonny G. Rafel, Esq. www.disabilitycounsel.com

Just as important is whether the individual has marketable skills to perform a “desk job”, since virtually every “sedentary” job requires strong computer skills. In our experience, the qualifications related to real time computer and technology use are under investigated in the insurers’ rush to deny.

We have seen some changes in the collateral information the insurers collect regarding our clients. For instance. on the “activities of daily living” forms they must complete, our disabled clients are asked whether they own a computer, whether it is a desktop or laptop, what they use the computer for (pay bills, read news, facebook). Be prepared for these are not innocent questions. It’s direct purpose is to establish that the claimant has full use of a computer and a skill that is “transferable” to the workforce. In short, claimants should not overstate their computer use at home.

We find out if our client used the computer in the past for their work. We understand that often our clients feel out of touch with the outside world once they have to stop working. Frankly, being disabled is a lonely place to be. With that understanding, we find out if our clients use the computer at home, not only as a “TV” to observe the world and stay connected, but rather, to prepare documents, charts, review written material; whether they have skills that are transferable. We make sure they do not overstate their computer use.

Courts have been tuning in to the real difference between using a computer on a sustained basis at a workplace versus having minor computer skills. For instance, see Mackey v. Liberty Life Assur. Co., 2016 U.S. Dist. LEXIS 28623 (W.D. Ark. Mar. 7, 2016). Mackey was a nurse who was disabled from her own occupation based on problems with her lower extremity. Liberty Life analyzed her claim by performing a transferrable skills analysis and found various jobs for her to perform. Liberty failed to consider her limited computer knowledge. The records show that Mackey did not own a computer and had limited experience using electronic medical records which she reported as being “ridiculously difficult” for her to master. The court reviewed the occupations which may be classified as sedentary in today’s economy, which “many and likely most of these jobs involve sitting at a desk and operating a computer for much of the workday”. Liberty did not consider this issue at all which rendered their reliance on a vocational report an abuse of discretion. Liberty also failed to consider her age which was 63 years old and the court found “her age is accordingly a central factor in determining whether she is capable of performing an occupation-particularly one that she had never performed in her career before”. Where a plan benefit does not require an administrator to consider age, and where the participant is relatively young, age may be an innocuous factor hardly necessary for reference. However, Mackey was 63 years old at the time of her appeal, only a couple years away from retirement age. Her age is accordingly a central factor in determining whether she is capable of performing an occupation particularly one she has never performed in her career before.

Another example is Gully v. Aetna Life Ins. Co. 2014 U.S. Dist. LEXIS 12278 (W.D. Ark. Jan. 31, 2014). The court held that Gully could not obtain a sedentary job at the salary required in light of his lack of important technology related skills/his inability to use a computer. The court explained that the report of the vocational consultant contained several “relevant material omissions regarding Gully’s qualifications for the jobs she identified as reasonable occupations”. It did not consider whether Gully’s lack of computer skills could be acquired through training or education within a reasonable period of time or whether the lack of skills could impact his ability to secure a particular wage. The court commented, “a problem with Aetna’s position is that it improperly assumes any necessary training will be minimal” even though the vocational consultant report fails to specifically acknowledge Gully’s lack of computer skills or access a level of training that would be required.

We at Bonny G. Rafel LLC handle dozens of appeals each year and aggressively mine through the evidence to best determine how to convince the insurers that our clients remain disabled. For our appeals, we rely on vocational experts who actually interview our clients and find out why their mental or physical conditions limit them and determines whether they retain real transferable skills to work at a sustained, reliable basis. If the insurers refuse to fairly review our evidence, we expect the Courts will.

ERISA itself does not contain a statute of limitations for bringing a civil action. 29 U.S.C. § 1132(a)(1)(B), so federal courts usually “borrow the most closely analogous statute of limitations in the forum state.” The Supreme Court has already held enforceable a contractual limitations period that commenced when the proof of disability was due, instead of the date of the final denial letter. Heimeshoff v. Hartford Life & Accident Ins. Co., 134 S. Ct. 604, 610 (2013).

Insurers have been allowed to establish oppressive deadlines for lawsuits that are almost impossible to meet. Short deadlines even six months has been enforced by the court. However, when the plan fails to inform clients of impending deadlines for litigation, the claimant may mistakenly think that they have plenty of time to find counsel to file suit on their behalf if their benefits are denied.

The disability benefits plans typically provide that “no legal action may be filed more than three years after proof of disability must be filed,” but this is not conveyed to the claimant in the denial letter. Hence an uninformed claimant may mistakenly overlook the deadline for initiating litigation to challenge the denial of their claim. The insurers do not freely inform the claimant of the start date of this deadline in correspondence either.

In Santana-Diaz v. Metro. Life Ins.Co., 2016 WL 963830 (1^st Cir. March 14, 2016) the claimant filed his lawsuit and MetLife argued that it was late. Santana argued that MetLife’s failure to provide notice of the time limit for filing suit in its final denial letter entitled him to “equitable tolling.” In its final denial letter, MetLife did not advise Santana that he had three-years to file suit. While the District Court granted MetLife’s motion for dismissal, The 1st Circuit Court of Appeals decided that MetLife’s failure to mention this time limit in its final detail letter did not comply with 29 C.F.R. § 2560.503-1(g)(1)(iv). This rendered the limitations period altogether inapplicable. Hence, his lawsuit was not time-barred.

This is in keeping with 20 U.S.C. § 1133’s purpose of ensuring a fair opportunity of judicial review. The Court explained, “claimants are obviously more likely to read information stated in the final denial letter, as opposed to included (or possibly buried) somewhere in the plan documents, particularly since, as was the case here, plan documents could have been given to a claimant years before his claim for benefits is denied. The Department of Labor, recognizing this, has required that the denial letters themselves include certain information that the Department of has deemed critical to ensuring afar opportunity for review.”

The case balances the needs of disabled claimants with the plan’s right to have control over the predictability of lawsuits [and] ERISA’s purpose of ensuring that claimants have a fair chance to present their cases which remains “the lodestar in determining whether there has been substantial compliance with the notice provisions.” Niebauer v. Crane & Co., Inc., 783 F. 3d 914 at 927 ( 1st Cir. 2015 )

As our firm handles dozens of long term disability administrative appeals per year, we regularly track deadlines for litigation to ensure our clients’ litigation rights are protected. We are beginning to see the tides turning as the insurers are notifying us of the deadlines for litigation in the final denial letter. This is a welcome change for our clients. Once the insurer denies their disability claim, their financial protection is removed and they must have a reasonable opportunity for access to judicial redress.

A recent case points out an example of how earnings during a residual disability claim can end a claim. In Safdi Md. v. Covered Employer’s Long Term Disability Plan Under the Union Central Employee Security Benefit Trust 2015 WL 7434695 (6th Cir. 2015) his Union Central policy provided that “benefits are terminated if a participant is either no longer disabled or exceeds the earnings threshold of 20%.” Dr. Safdi reduced his work hours after treating for prostate cancer. He lost income due to fewer hours billed. Once in a while, due a spike in collecting payments, his income did exceed the 80% threshold. Once an audit occurred Union Central stopped benefits and demanded a repayment of over $500,000. It was accurate that Safdi did earn over 80% of his pre-disability earnings on certain months, due to the payment of collectables. However, on average, he still sustained a loss which would have justified the continued payment of the claim under the policy if it did not have this “all or nothing clause.” Safdi claimed that participants will be “victimized” by a one-time spike in current monthly earnings which is an acute risk under a plan designed for professionals because “payments from professional services (through insurance reimbursements and government benefits) are normally significantly in arrears after provision of the … services.” The court rejected his plea that the variability of professional earnings inures to the benefit of the insurer more than often than not and applied the policy terms as written.

We at Bonny G. Rafel LLC continue to handle claims for professionals who become unable to work or have to significantly reduce their practice due to illness. We have to carefully review the policy terms and monitor their earnings to optimize the policy benefits and watch out for policy pitfalls. Contact us for more information on how we can help you with your case. Bonny G. Rafel LLC

We are Bonny G. Rafel LLC pursue disability claims for our clients and seek discovery which reveals whether the decision-makers are relying on partial medical reviewers. Contact us to learn more about our firm and how we can provide assistance for your denied disability LTD claim.

MetLife’s letter did not assert a time bar or statute of limitations defense, and MetLife never noted in its letters or interaction with Witt’s attorney that it would ever exert a statute of limitations as a defense to litigation. When Witt filed a lawsuit several years later, MetLife successfully dismissed the claim and the 11th Circuit upheld the District Court’s decision. The court reasoned that it was not necessary for MetLife to expressly state in writing that it was preserving its right to exert the statute of limitations as a defense.

MetLife was entitled to perform a “courtesy review” of the claim without thereafter binding it to a re-initiation of a statute of limitations. The court was concerned that if they require an insurer to expressly state that its reconsideration of a stale claim preserved its right to a statutory timeliness defense, “that outcome would prevent plan participants with meritorious though untimely claims from receiving a review and possibly benefits. At the same time, it would aid only those individuals who fail to file claim in a timely fashion and then have their subsequent claims denied on the merits”.

The lesson from this decision is that while a claimant can request that an insurance company review a claim which is untimely, the insurer is under no legal obligation to review that claim. Further, if the insurance company agrees to review the claim, it is “without prejudice” to its later asserting the timeliness defense. Apparently some insurance companies will voluntarily review a claim and it seems worthwhile to pursue an appeal, although the insured must be aware that it has no right to civil litigation if the voluntary review by the insurance company fails to result in a reversal of a denial.

As counsel on disability matters, we at >Bonny G. Rafel LLC are very mindful of statute of limitations and proactively calendar such deadlines. Reopening a claim that has been closed after much time has passed, carries with it the risk that the review will not result in a reinstatement and has no relevancy to the deadlines for filing a civil action. Hence, if the statute of limitations is approaching on a matter, it doesn’t appear to be worthwhile to seek a “voluntary appeal” because the insurer is under no obligation to waive its statute of limitations defense.

Alternatively, we have been successful in approaching insurance companies and having them expressly, in writing, waive a statute of limitations defense or toll the running of statute of limitations during the review. That only occurs if we handle the appeal and the statute of limitations has not already expired.

Insurers cannot agree to provide coverage for an employee’s “own occupation” and then fail to consider the precise elements of the material and substantial duties of the occupation when evaluating a disability claim. We at Bonny G. Rafel can help if your claim is denied because the insurer does not consider all of the duties of your occupation. Bonny G. Rafel, LLC We advocate for patients with disabling conditions and may be able to assist you in getting the benefits you deserve. .

A recent case from Michigan provides a great window into how this process can work. In Gillespie v. Liberty Life Assurance Co. of Boston, the plaintiff was a former bank teller who underwent surgery to relieve persistent back and neck pain. The plaintiff briefly attempted to return to work following her surgery. However, this exacerbated her pain symptoms. After she stopped working, her condition improved, she was able to see her doctors less frequently, and to reduce the amount of pain medication she took. However, this improvement triggered a heightened review by Liberty. Her treating physicians reported to Liberty that she was still unable to work, but Liberty, unsatisfied, requested an independent medical examination (IME). The IME doctor reported that she could return to a sedentary position. Liberty terminated her benefits in a month after the IME. Despite appealing, her denial was upheld and she filed suit against Liberty.

Thankfully, the court found that Liberty’s decision was improper on a number of grounds. Liberty over-relied on their own doctors and consultants, as there is nothing in the record to indicate that Gillespie’s treating physicians’ opinions were considered. Most importantly, Liberty failed to address the fact that work exacerbated Gillespie’s pain symptoms and did not consider how a return to work again would not end in the same result.

The Gillespie case demonstrates two key points. First, just because your condition has improved does not mean you are able to return to work. Therefore, you should be clear about this fact when speaking to your treating physician. You should absolutely tell your doctor that your condition has improved. However, you should also be sure to include the fact that your improvement is due to not working. Second, Gillespie demonstrates the importance having effective counsel to monitor your benefits after approval. At Bonny G. Rafel, LLC, we are experienced in this monitoring process. Should you be concerned that your benefits are at risk, do not hesitate to contact us for a consultation.

By: Joshua Smith

Certain jobs come with zero-tolerance for the use of even prescribed controlled substances. The Federal Aviation Administration’s (FAA) Office of Aerospace Medicine has published a lengthy and non-exhaustive list of prohibited medications, and Aviation Medical Examiners have been instructed to refuse issuance of an FAA medical certification to any person who use any drug on this list. In

The Court was particularly interested in considering whether it would be appropriate to remand the case to Sedgwick to reconsider the ongoing claim. They determined, ” if Sedgwick were ordered to take another look at the claims in light of favorable SSA decision Sedgwick could and probably would treat the SSA findings as simply something else to discount in comparison with its “independent, non-examining medical experts.” Assuming the court had the power to remand the case to the Sedgwick Briar Patch, that Briar Patch is one in which Sedgwick is accustomed to navigate.”

Commenting on the conflict of interest, “If the Supreme Court’s Metlife v. Glenn made nothing else clear, it made it absolutely clear that a conflict of interest always exists under circumstances like these and that the conflict is a substantial factor that must be considered in evaluating, even if the denial was arbitrary and capricious. Although, Sedgwick may argue that it itself is not obligated to pay benefits that the plan may be obligated to pay to Ms. May, it is clear that its loyalty is to the owner of the pocket from which those benefits would be drawn. If any proof were needed of the fact that for ERISA purposes, Sedgwick is the alter-ego of the funding entity, it is the fact that the decision maker and the payer are represented by the same lawyers. They are all in this together”.

The court found Ms. May credible and stated, “We find that she suffered from the debilitating pain she sought to have corrected by surgery. Her claims were of such small amounts that they cannot suggest a motive for fraud or misrepresentation. No sane person would submit to two dangerous surgeries just to obtain small amounts of disability benefits”.

We at Bonny G. Rafel LLC recently won a Judgment against Liberty Mutual, the claim administrator and the employer, Santander Holdings USA, for wrongfully denying a STD and LTD claim and putting its own financial interests ahead of those of its employee.